Presented by County Counsel, Deputies Ronnie Magsaysay and Mark Servino 1
History of the PRA California Public Records Act (PRA) was enacted in 1968 The CPRA is codified under Gov. Code 6250-6276.48 In enacting the PRA, the Legislature declared that access to information concerning the conduct of the people s business is a fundamental and necessary right of every person in the state. (Gov. Code 6250) Proposition 59 passed in 2004 Therefore, public records must be disclosed to the public upon the request unless there is a specific reason not to do so. 2
The California Public Records Act In 10 Seconds Any person may inspect or receive a copy of a public record unless it is exempt. (Gov. Code, 6253) 3
What is a public record? Public records include any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. ( 6252(e).) 4
Hypothetical Private E-Mail A member of the public submits a PRA request seeking Emails or text messages on private electronic devices used by County staff regarding any matters concerning the County. Are the e-mails on private gmail accounts public records? Does the county have to search the private e-mail accounts of its employees and officials? 5
The Request Requests may be oral or in writing. Requests need not refer to the CPRA. Request should reasonably identify a record Confirm oral requests in writing. Okay to recommend, but not require, written requests to reduce confusion about the records requested. Practice Tip: Not every inquiry is a Public Records Act request. 6
The Request The following practices are NOT permissible: Requiring requester s name, driver's license, employer's name, or other identifying information. Requiring requester to state the purpose for which the records are sought. ( 6257.5) Requiring requester to purchase copies of documents in order to view them County of Santa Clara v. Superior Court, 171 Cal. App. 4th 119 (2009). 7
The Request What if the request is ambiguous or seeks a large volume of records? An agency has a duty to assist the public in making a focused and effective request that reasonably describes an identifiable record or records. ( 6253.1.) Tip 1: Ask requester to narrow the request by timeframe or scope. Tip 2: Provide records on a rolling basis, rather than one big package. 8
The Search The agency does not need to create responsive records. No obligation to create a NEW record. 9
Electronic Records Exception: The requester shall bear the cost of producing an electronic record when either of the following applies: The record is one that is produced only at otherwise regularly scheduled intervals. The request would require data compilation, extraction, or programming to produce the record. ( 6253.9(b).) Get the check before you start programing! 10
The Search The agency does not need to create responsive records. Consider the amount of redactions. 11
The Search The agency does not need to make a list of such records. Example: Table of Contents problem 12
The Search Searching can be frustrating. Please do not create a RECORD of your frustration in the process. 13
The Response Within 10 calendar days after receipt of the request: Agency must determine whether it has responsive records and advise the requester whether it will disclose these records. ( 6253(c).) Agency must notify the requester of the reasons for withholding any responsive records in writing. ( 6253(c), 6255.) If any responsive records are withheld, then the agency must list the names and titles or positions of each person responsible for the denial. ( 6253(d).) 14
The Response Response should be in writing. ( 6255(b).) Must be in writing if request is denied in whole or in part. The agency shall state the estimated date and time when the records will be made available. ( 6253(c).) Tip: Confirm oral requests in writing. 15
The Response In unusual circumstances, agency may extend period to respond up to 14 calendar days by giving written notice to the person making the request of the agency s need to: Communicate with field offices; Examine voluminous records; Communicate with other agencies, which have an interest in the records; or Construct computer reports ( 6253(c).) 16
Production Do you have to produce the records with the response? No, the response does not have to include copies of responsive documents or agree to make them available within 10 days if it is not practicable to do so. The agency has a reasonable time to produce records, but it cannot obstruct or delay. Motorola Communication & Electronics v. Dept. of General Svcs., 55 Cal. App. 4th 1340, 1349 (1997); 6253(d). 17
Production The requester may inspect the records free-of-charge on County premises or may obtain copies of the records for a fee covering only the direct costs of duplication of the copies the requester obtains. ( 6253.) 18
Production For most paper records, in Orange County, the fee for duplication is $0.15 per page, but some records have special fees. This cannot be waived. ( 6253(b); Resolution No. 99-452.) Proposition 26 (2010): Fee cannot exceed the reasonable costs to the local government of providing the service or product. No fees may be charged to reimburse agency costs incurred to search, review, redact, or respond to a request, including staff time to monitor the inspection of records 19
Electronic Records The agency must provide electronic records in the format requested if the requested format is one that has been used by the agency to create copies for its own use or for provision to other agencies. ( 6253.9.) 20
Judicial Review Expedited review by a court is available to the requester if a request for public records is denied. ( 6258.) The County has the burden of proving that the records or parts of records that were not produced are exempt from public disclosure. The court may inspect the records in chambers and out of the hearing of the public in order to determine if the claims of exemption are valid. If the County loses, the County will be required to pay the requester's costs and attorneys fees. ( 6259.) 21
CPRA Exemptions Types of exemptions: Express exemptions: those specifically identified in the CPRA. Statutory exemptions: info that is protected by other laws. Balancing test: a catch-all provision that applies where the public interest in nondisclosure clearly outweighs the public interest served by disclosure. ( 6255.) 22
CPRA Exemptions Common Exemptions: Preliminary drafts, notes and memoranda ( 6254(a).) Pending litigation records ( 6254(b).) Personal information ( 6254(c) and (k).) Attorney-client privileged information ( 6254(k).) Deliberative process. The catch-all public interest balancing test ( 6255.) Consider 6257-6276.48. 23
CPRA Exceptions Preliminary Drafts and Memoranda Preliminary drafts, notes, or interagency or intra-agency memoranda which are not retained by the public agency in the ordinary course of business, provided that the public interest in withholding those records clearly outweighs the public interest in disclosure. ( 6254(a).) 24
CPRA Exemptions Pending litigation exemption ( 6254(b).) A document is protected from disclosure only if the document was specifically prepared for use in litigation. Exemption lasts only for duration of litigation. It is not enough that record relates to pending litigation. Does not include: Incident reports prepared in the normal course of business. 25
CPRA Exceptions Personal Information Personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy. ( 6254(c).) 26
CPRA Exceptions Privacy A party claiming a violation of the constitutional right of privacy must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest. International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 338 (2007) 27
CPRA Exemptions The Catch-all Exemption The agency shall justify withholding any record by demonstrating that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record. ( 6255(a).) 28
CPRA Exemptions The Deliberative Process Privilege Key question: Does disclosure discourage candid discussion within the agency and thereby undermine the agency s ability to perform its functions? Times Mirror Co. v. Superior Court, 53 Cal. 3d 1325 (1991). 29
CPRA Exemptions Can you withhold proposals submitted during bidding? Agency is not required to disclose competitive proposals submitted in connection with a public contract until after negotiations have concluded. Why? Agency would be impaired in its ability to negotiate the best possible price if the other party enters into negotiations with full knowledge of what each proposer is willing to pay, thus the public interest in nondisclosure outweighs the public interest in disclosure. Michaelis, Montanari & Johnson v Superior Court, 38 Cal. 4 th 1065 (2006). 30
Redactions Agencies bear the burden of demonstrating that records are exempt from disclosure. Keep a copy of the un-redacted records for a judge. Make a copy of the redacted version and give the requester the COPY. If you redact in Excel, write [redacted] where the section was deleted. 31
Redactions Agencies may redact exempt information from a record, but the remainder of the record must be disclosed. ( 6253.) Nonexempt Information Exempt Information Nonexempt information but nonresponsive = Do Not Redact 32
Recent/Common Issues: (1) Attorney Billing Records Cty. of Los Angeles Bd. of Supervisors v. Superior Court of Los Angeles Cty. (2015) 235 Cal. App. 4 th 1154 Request for invoices specifying the amounts that the County had been billed by any law firm in connection with certain lawsuits Review granted by the California Supreme Court 33
Recent/Common Issues: (2) Expired/Outstanding Checks What is material is the public interest in disclosure, not the private interest of a requesting party; [the PRA] does not take into consideration the requesting party s profit motives or needs. (Connell v. Superior Court (1997) 56 Cal.App.4 th 601, 617.) Orange County s current procedure Monthly report 34
Recent/Common Issues: (3) Employee Salary Info. Counterbalancing any cognizable interest that public employees may have in avoiding disclosure of their salaries is the strong public interest in knowing how the government spends its money. (Local 21, AFL-CIO v. Superior Court (42 Cal. 4 th 319, 333.) Orange County s current procedure Yearly report 35
CPRA Best Practice Tips Note the date of receipt of the request and deadline for responding. RESPOND TIMELY! Consider whether the request asks for electronic records. Route the request to the designated person to coordinate response. If the scope or subject matter of the request is unclear, contact the requesting party to find out what info is really needed. Contact your agency s assigned Deputy County Counsel for assistance. Be helpful: remember duty to assist! Treat difficult and repetitive requests professionally. 36